Appeal by plaintiffs from order entered 11 August 2005 by
Judge Wade Barber, Jr. in Wake County Superior Court. Heard in the
Court of Appeals 16 August 2006.
Schiller & Schiller, PLLC, by Marvin Schiller, David G.
Schiller, and Kathryn H. Schiller, for plaintiffs-appellants.
Tharrington Smith, L.L.P., by Kenneth A. Soo, Neal A. Ramee
and Ann L. Majestic, for defendant-appellee.
GEER, Judge.
Plaintiffs Citizens Addressing Reassignment and Education,
Inc., Jade John Litcher, and Elizabeth Lee Haner filed suit to
block defendant, the Wake County Board of Education ("the Board"),
from building a modular school on property leased from the National
Alumni Association of Dubois High School ("the Association").
Plaintiffs appeal from an order of the superior court granting the
Board's motion to dismiss plaintiffs' claims on the grounds of
mootness and laches. Since the school has already been opened, we
agree with the trial court that most of plaintiffs' claims are
moot. As to those claims that are not moot, plaintiffs have failed
to state a claim for relief, and, therefore, we affirm.
Facts
The facts of this case are essentially undisputed. In an
effort to alleviate school overcrowding, the Wake County Board of
Commissioners, in November 2004, approved the opening of three
modular elementary school facilities. These schools, scheduled to
begin operating in August 2005, were to serve as temporary
locations until the construction of permanent schools could be
completed in 2006 and 2007. For one of the modular facilities _
intended to hold approximately 500 students _ the Board leased a
parcel of Wake County real property ("the Dubois site") in March
2005 from the Association. The remaining two modular facilities
were to be placed on land owned by the Board.
On 31 May 2005, plaintiffs sued the Board, alleging that the
lease agreement and the Board's construction of the modular schoolon the leased Dubois site violated N.C. Gen. Stat. § 115C-521(d)
(2005), which provides that "[l]ocal boards of education shall make
no contract for the erection of any school building unless the site
upon which it is located is owned in fee simple by the board[.]"
Plaintiffs sought a declaratory judgment that the lease agreement
was void; a permanent injunction and a writ of mandamus prohibiting
the expenditure of any additional public funds for the construction
of the modular facility on the leased premises; and an order
requiring the Board to repay to the Wake County Board of
Commissioners all public funds spent on lease payments and the
modular facility's construction, as well as any payments that were
otherwise made in violation of N.C. Gen. Stat. § 115C-521(d).
The Board filed a motion to dismiss plaintiffs' claims on 7
July 2005. Following a 29 July 2005 hearing, the trial court
dismissed plaintiffs' claims, concluding that they were both moot
and barred by the doctrine of laches. With respect to mootness,
the court found that, at the time of the hearing, "the modular
school facility . . . was substantially complete. Staff will
report to the school building on or about August 15, 2005, and
students will report on August 25, 2005." Based on this finding,
the court concluded that "[i]n view of the relief requested by
plaintiffs and the substantial completion of the school facility .
. ., the case before the [c]ourt is moot." Further, based on
findings of fact relating to when plaintiffs first became aware of
the likely use of the Dubois site, the timing of their efforts to
block the construction of the school, and the expense incurred by
the Board, the court "in its discretion, . . . determined that the
principle of laches should be invoked because of the delay in
bringing this suit and the substantial harm to the Board of
Education, and especially to those students who are to attend theschool at the Dubois site, that would result if an injunction were
granted."
Plaintiffs have timely appealed to this Court from the
order granting the Board's motion to dismiss.
Discussion
[1] Plaintiffs included 24 assignments of error in their
record on appeal and, in those assignments of error, specifically
challenged both the trial court's conclusion that their claims were
moot as well as the court's determination that the doctrine of
laches also barred their claims. In plaintiffs' brief, however,
their entire argument with respect to mootness was limited to the
following single paragraph:
The [c]ourt below erred in alternatively
holding that the case is moot. [Citation to
the trial court's order]. As demonstrated in
the preceding six (6) [a]rguments,
[plaintiffs] are entitled to the issuance of a
declaratory judgment, permanent injunction and
writ of mandamus regarding [the Board's]
violation of the clear and plain language of
N.C. Gen. Stat. § 115C-521(d).
Nowhere, however, in plaintiffs' "preceding six" arguments do they
address mootness or cite to any authority pertaining to that
principle. Moreover, plaintiffs have not submitted to this Court
any memorandum of additional authority, as permitted by N.C.R. App.
P. 28(g), with respect to mootness.
In short, plaintiffs have submitted no authority in support of
their contention that the trial court erred in concluding that
their claims were moot. "Assignments of error not set out in the
appellant's brief,
or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned." N.C.R.
App. P. 28(b)(6) (emphasis added). Plaintiffs have, therefore,
abandoned their assignment of error to the trial court's dismissal
of their claims based on mootness.
See Goodson v. P.H. Glatfelter
Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 ("It is not theduty of this Court to supplement an appellant's brief with legal
authority or arguments not contained therein. This assignment of
error is deemed abandoned . . . ."),
disc. review denied, 360 N.C.
63, 623 S.E.2d 582 (2005). Nevertheless, pursuant to our
discretion under N.C.R. App. P. 2 (permitting suspension of
appellate rules to "expedite decision[s] in the public interest"),
we elect to suspend the appellate rules and reach the merits of
plaintiffs' mootness contentions as brought out in oral argument.
[2]
With respect to plaintiffs' efforts to obtain a permanent
injunction and writ of mandamus prohibiting any additional
expenditures for the modular school's construction, "'[i]t is quite
obvious that a court cannot restrain the doing of that which has
already been consummated.'"
Fulton v. City of Morganton, 260 N.C.
345, 347, 132 S.E.2d 687, 688 (1963) (quoting
Austin v. Dare
County, 240 N.C. 662, 663, 83 S.E.2d 702, 703 (1954))
. Although
plaintiffs assigned error to the trial court's finding that as of
"July 29, 2005, . . . the modular school facility . . . was
substantially complete" and that "students will report on August
25, 2005,"
they have neither brought this assignment of error
forward in their brief nor made any argument suggesting why it was
not supported by competent evidence. This finding is, therefore,
binding on appeal.
See In re P.M., 169 N.C. App. 423, 424, 610
S.E.2d 403, 404 (2005) (factual assignments of error binding on
appeal when appellant "failed to specifically argue in her brief
that they were unsupported by evidence"). Consequently, as a
permanent injunction and writ of mandamus would only attempt to
stop that which has already been done, plaintiffs' claims for
relief on these issues are moot.
See Roberts v. Madison County
Realtors Ass'n, 344 N.C. 394, 402, 474 S.E.2d 783, 789 (1996)(courts may not issue injunctions to "prohibit [events] from taking
place when [they] ha[ve] already occurred").
[3] Regarding plaintiffs' efforts to obtain a declaratory
judgment that the construction of the modular school facility
violates § 115C-521(d), actions filed under the Declaratory
Judgment Act, N.C. Gen. Stat. §§ 1-253 through -267 (2005), are
subject to traditional mootness analysis.
Carolina Spirits, Inc.
v. City of Raleigh, 127 N.C. App. 745, 747, 493 S.E.2d 283, 285
(1997),
disc. review denied, 347 N.C. 574, 498 S.E.2d 380 (1998).
"A case is considered moot when 'a determination is sought on a
matter which, when rendered, cannot have any practical effect on
the existing controversy.'"
Lange v. Lange, 357 N.C. 645, 647, 588
S.E.2d 877, 879 (2003) (quoting
Roberts, 344 N.C. at 398-99, 474
S.E.2d at 787). Typically, "[c]ourts will not entertain such cases
because it is not the responsibility of courts to decide 'abstract
propositions of law.'"
Id. (quoting
In re Peoples, 296 N.C. 109,
147, 250 S.E.2d 890, 912 (1978),
cert. denied, 442 U.S. 929, 61 L.
Ed. 2d 297, 99 S. Ct. 2859 (1979)). The disputed school is already
operating, and plaintiffs do not seek closure of the facility.
Therefore, a legal determination declaring the building unlawful
would have no practical effect on the controversy. This issue
presents only an abstract proposition of law for determination and
is, therefore, also moot.
[4] As for plaintiffs' request for a declaratory judgment
voiding the lease with the Association and for an injunction
prohibiting future lease payments, we agree with plaintiffs that
this issue is not necessarily moot. In seeking this relief,
however, plaintiffs have relied upon an erroneous construction of
N.C. Gen. Stat. § 115C-521(d). Under this statute, "[l]ocal boards of education shall make no
contract
for the erection of any school building
unless the site
upon which it is located is owned in fee simple by the board[.]"
N.C. Gen. Stat. § 115C-521(d) (emphasis added). Plaintiffs'
contention that the lease with the Association violates this
provision is contrary to the plain language of the statute. By its
specific terms, the statute prohibits only contracts "for the
erection" of school buildings. The lease agreement, however, is
merely a contract to lease land.
(See footnote 1)
While the lease does state that the Board intended to use the
Dubois site "for construction of an approximate 500 student modular
school facility," this provision also specifies that "such use
shall be undertaken in a manner that complies with applicable law
as now or hereafter enacted or construed . . . ." Thus, even if
plaintiffs are correct that erection of a modular facility on
leased property violates N.C. Gen. Stat. § 115C-521(d) _ an issue
on which we express no opinion _ nothing in the lease requires, or
even permits, the Board to engage in conduct that would violate
that statute.
The agreement with the Association is addressed only to
standard landlord and tenant issues, including the duration of the
tenant's leasehold, rent, and the obligations of the landlord and
tenant. It contains no terms relating to the actual erection of
any building. The statute at issue, however, does not prohibit
leasing property; it prohibits the erection of a building.
Accordingly, plaintiffs' claims seeking a declaration that the
lease was void and an injunction prohibiting further lease payments
were, therefore, properly dismissed. Plaintiffs also sought, in their prayer for relief, an order
that the Board "repay to the Board of Commissioners of Wake County
all public funds that were expended for lease payments and expended
for the purpose of building, constructing or erecting of any public
school building on the leased [p]remises, and any other payment
which were [sic] made in violation of N.C. Gen. Stat. § 115C-
521(d)." In oral argument, plaintiffs contended, with respect to
the lease payments, that this remedy was not barred as moot. Our
determination that the lease did not violate § 115C-521(d),
however, disposes of this contention.
[5] As for repayment of other funds expended, plaintiffs did
not, even in oral argument, provide any legal basis for requiring
the Board to repay to Wake County funds spent on the building of
the modular school building. Without plaintiff presenting a legal
basis for awarding such relief, we cannot reverse the trial court.
As our Supreme Court has stressed, "[i]t is not the role of the
appellate courts . . . to create an appeal for an appellant."
Viar
v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005) (per curiam).
[6] Finally, plaintiffs sought a permanent injunction
prohibiting the Board from making similar purportedly illegal
contracts in the future. It is, however, well established that
"[c]ompleted acts and past occurrences in the absence of any
evidence tending to show an intention on the part of the defendants
to [commit future violations], will not authorize the exercise of
the court's injunctive power."
State ex rel. Bruton v. Am. Legion
Post, 256 N.C. 691, 693, 124 S.E.2d 885, 886-87 (1962). Plaintiffs
have not assigned error to the trial court's following finding of
fact: "There was no evidence presented to demonstrate [the Board]
currently is planning or installing any other school facility onleased property and such is not at issue in this case. There was
no evidence that the Board of Education has previously installed a
school facility on leased property." This finding of fact, binding
on appeal, supports the trial court's decision not to grant a
permanent injunction barring future contracts by the Board
potentially in violation of N.C. Gen. Stat. § 115C-521(d).
In sum, each of plaintiffs' claims is either moot or otherwise
meritless. Because of our resolution of this appeal, we need not
address the trial court's determination that plaintiffs' claims are
barred by laches.
Affirmed.
Judge CALABRIA concurs.
Judge JACKSON concurs in part and dissents in part in a
separate opinion.
JACKSON, Judge concurring in part and dissenting in part.
I concur with the majority's conclusion that the issue of
plaintiffs' request for a declaratory judgment that the
construction of the modular school facility violates section 115C-
521(d) is moot. However, for the reasons stated below, I believe
the majority unnecessarily addressed plaintiffs' request for a
declaratory judgment voiding the lease with the Association and for
an injunction prohibiting future leases. I would hold the trial
court properly found the doctrine of laches to be applicable, and
that these issues are moot due to the passage of time.
“In equity, where lapse of time has resulted in some change in
the condition of the property or in the relations of the parties
which would make it unjust to permit the prosecution of the claim,
the doctrine of laches will be applied.” Teachey v. Gurley, 214N.C. 288, 294, 199 S.E. 83, 88 (1938). Thus, a determination of
whether a delay constitutes laches will depend upon the facts and
circumstances of the specific case. Id.
When laches is raised, an appellate court
faces “a three-fold question: (1) Do the
pleadings, affidavits and exhibits show any
dispute as to the facts upon which defendants
rely to show laches on the part of plaintiffs?
(2) If not, do the undisputed facts, if true,
establish plaintiffs' laches? (3) If so, is it
appropriate that defendants' motion for
summary judgment, made under G.S. 1A-1, Rule
56(b), be granted?”
Save Our Schools of Bladen Cty. v. Bladen Cty. Bd. of Educ., 140
N.C. App. 233, 236, 535 S.E.2d 906, 909 (2000) (quoting Taylor v.
City of Raleigh, 290 N.C. 608, 621, 227 S.E.2d 576, 584 (1976)).
Here, the basic facts of the case are undisputed. The Wake
County Board of Education first publicized the possibility of
placing a modular school facility on the DuBois property in January
2005 when it requested that the Wake County Board of Commissioners
approve a three year lease of the DuBois site. On 1 March 2005,
the Board executed a two year lease for the installation of the
modular school facility at the DuBois site. However, plaintiffs
did not initiate the instant action until three months after the
subject lease was signed, and just over two months before the
school was set to begin operation in the modular buildings on the
leased property. A final judgment in the action was rendered at a
hearing held 29 July 2005, and plaintiffs filed their Notice of
Appeal one month later on 29 August 2005. The record on appeal was
settled and filed with this Court on 23 January 2006, several
months after children began attending school on the premises, and
almost ten months after defendant began paying rent on the leased
realty. The instant case was not argued before this Court until 16
August 2006. By this time, defendant had entered into the second
year of the two year lease agreement, and again, children werepreparing to begin a new school year at the site. In addition, by
the time this opinion is rendered, only three to four months will
remain in the 2006-07 school year.
At no time did plaintiffs make any effort to expedite our
review of this matter. Plaintiffs failed to file any motions or
petitions with this Court asking us to review the substantive
issues of the case in an expedited time frame in order for the
parties to receive a resolution to the matter in a timely fashion.
Rule 2 of our appellate rules specifically provides that this Court
may suspend or vary the appellate rules and their requirements
“[t]o prevent manifest injustice to a party, or to expedite
decision in the public interest.” N.C. R. App. P. 2 (emphasis
added). While this Court may invoke Rule 2 upon our own
initiative, a party also is entitled to ask this Court to invoke
the Rule, see N.C. R. App. P. 2, however plaintiffs never attempted
to do so in this case. Based upon these facts, I would hold that
the undisputed facts of the case establish laches, which serves as
a bar to plaintiffs' claims given that they knew of the existence
of the grounds for their claim as early as March, if not January,
of 2005, but chose to take no action. See Save Our Schools, 140
N.C. App. at 236, 535 S.E.2d at 909.
In addition, as cited by the majority, “[a] case is considered
moot when 'a determination is sought on a matter which, when
rendered, cannot have any practical effect on the existing
controversy.'” Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877,
879 (2003) (quoting Roberts v. Madison County Realtors Assn., 344
N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996)). In the instant
action, there remain only a few months on the lease at issue. Our
rendering the lease void at this time would have little practical
effect on the existing controversy, as the lease likely wouldexpire before the children and modular buildings could be moved
from the property. This could not be done without great expense,
which would contradict plaintiffs' purposes in filing the instant
action. “It is quite obvious that a court cannot restrain the
doing of that which has been already consummated.” Austin v. Dare
County, 240 N.C. 662, 663, 83 S.E.2d 702, 703 (1954). As defendant
already has entered into, and effectively performed a majority of
the lease agreement in question, this Court may not now render a
decision on the validity of the lease.
For these reasons, I would decline to address the issues of
plaintiffs' request for a declaratory judgment voiding the lease
with the Association and for an injunction prohibiting future lease
payments, as these issues are now moot.
Footnote: 1